Abhay Kumar @ Dheeraj Ojha vs Rakesh Kumar Verma And Others

Manish Mathur, J

Application has been filed for issuance of notice on I.A. No.32 of 2024 filed by respondent No.1 of Election Petition. The said application has been filed pertaining to Recrimination Petition which has been numbered as I.A. No. 32 of 2024 in the Election Petition.

Heard Mr. Anupam Mehrotra, learned counsel for recriminator/ respondent no.1 to the Election Petition, Mr. Sudeep Seth, learned senior counsel assisted by Mr. Rajnish Ojha, learned counsel for Election Petitioner and Mr. Sudhir Pandey, learned counsel for respondent no.4 in the Election Petition.

Mr. Anupam Mehrotra, learned counsel for recriminator/ respondent no.1 has submitted that earlier subsequent to filing of Election Petition, recrimination petition had been filed under Section 97 of the Representation of People Act, 1951 with the said recrimination petition initially being registered as Writ C No.4613 of 2022 in which notice was issued vide order dated 21.07.2022 whereafter the said recrimination petition was directed to be listed as an interim application in the election petition itself resulting as application no.32 of 2024.

It is submitted that since notice was issued initially in the writ petition and not in a recrimination petition, fresh notices are required therefore to be issued in the recrimination petition to all the respondents particularly since even when the recrimination petition was registered as writ petition, despite issuance of notices, such notices have not been served upon all the respondents.

Elaborating upon his submissions, learned counsel has placed reliance on Chapter XV-A, Rule 5 of the Allahabad High Court Rules pertaining to special provisions relating to the trial of election petitions and submits that the said provision clearly indicates the provision for issuance of notices in an election petition. It is submitted that such a notice is required to the respondents to put up their defence, file the written statement and for purposes of leading evidence.

He has also referred to Chapter XV-A, Rule 12 of the Allahabad High Court Rules to submit that the Court has power to give directions in matters of practice and procedure which is consistent with the provisions of Section 87 of the Act of 1951 including recording of evidence.

He has also adverted to Section 87 of the Representation of People Act, 1951 to submit that before the High Court, every election petition has to be tried as nearly as may be, in accordance with procedure applicable under the Code of Civil Procedure 1908, to the trial of suits.

It is therefore submitted that since provisions of Code of Civil Procedure are applicable, provisions of Order V Rule 9, Order VII, Rule 9 and Order VIII, Rule 6A (4) of the Code are required to be followed.

It is submitted that in terms of Order VIII, Rule 6-A, procedure in case of a counter claim by defendant has been indicated and submits that in case of such a counter claim in respect of cause of action accruing to the defendant against the plaintiff, the same procedure is required to be followed as applicable to plaints & consequently as indicated in Order V and Order VII of the Code.

It is submitted that Order VII, Rule 9 of the Code indicates procedure on admitting a plaint and where the Court orders summons to be served upon defendant in the manner provided in Order V, Rule 9, the said procedure is required to be followed. He therefore submits that Order V, Rule 9 pertains to delivery of summons by the Court and the manner in which such service of summons is required to be delivered and effected.

Learned counsel therefore submits that a conjoint reading of Chapter XV-A of Allahabad High Court Rules, Order V, Rule 9, Order VII, Rule 9 and Order VIII, Rule 6A of the Code clearly indicates that even in case of a counter claim in an election petition particularly as in the case of recrimination petition under Section 97 of the Representation of the People Act, 1951, the procedure as indicated in the Code is required to be followed by issuance of and effecting notices upon respondents.

He has also adverted to Section 97 of the Representation of People Act to submit that the said provision indicates that when in an Election Petition, a declaration that any candidate other than the returned candidate has been duly elected, is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been returned candidate and a petition had been presented calling in question his election. It is thus submitted that since Section 97 of the Representation of the People Act clearly indicates the aspect of providing evidence, such evidence can be given only in case such other party being returned candidate or any other party are provided notice of recrimination petition, failing which, they would not have notice of recrimination petition and therefore would be deprived from giving evidence. It is therefore submitted that in case notices are not issued on the recrimination petition, it would deem a failure of provisions of Section 97 of the Representation of People Act. He has also adverted to Section 86(4) of the Representation of People Act particularly the explanation thereto to submit that the word 'respondents' indicated in the explanation also indicates a date fixed for appearance before the High Court for answering the claim or claims made in the petition. It is thus submitted that the words 'respondents' in plural indicate an opportunity to all the respondents not only in the election petition but also in the recrimination petition to give their evidence in rebuttal, which can be achieved only in case notice is issued even in the recrimination petition.

Learned counsel has also placed reliance on Black's Law Dictionary Eighth Edition to indicate that the term recrimination has been indicated as a counter charge. Although the said designation is in terms of a divorce suit, it is submitted that the meaning attached in term recrimination would be applicable in terms of Section 97 of the Representation of the People Act as well. Reliance has also been made to the Legal Glossary, 1988 issued by the Government of India in which the term recrimination specifically in terms of Section 97 of the Act of 1951 has also been defined a counter charge. It is in terms thereof that learned counsel submits that provisions of a recrimination petition under Section 97 of the Representation of the People Act is in the nature of a counter-claim and since in terms of Section 87 of the Representation of People Act read with Chapter XV-A of the Allahabad High Court Rules, principles of the Code of Civil Procedure are applicable, therefore the recrimination petition being a counter claim, procedure indicated in terms of Order VIII, Rule 6A(4) is required to be followed for purposes of issuance of notice.

Learned counsel has placed reliance on judgments rendered by Hon'ble the Supreme Court in the case of Jabar Singh versus Genda Lal; AIR 1964 Supreme Court 1200 as also in the case of Bhag Mal versus Ch. Parabhu Ram & Ors.; (1985)1 SCC 61.

Mr. Sudhir Pandey, learned counsel for respondent no.4 has also submitted and placed reliance on Black's Law Dictionary particularly with regard to the aspect that words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clauses referring to them. In terms thereof, it is submitted that the procedure indicated in Section 87 of the Representation of People Act indicates legislation by reference and therefore since the procedure indicated under Order VIII Rule 6-A(4) indicates notices to be issued in case of a counter claim and recrimination petition under Section 97 of the Representation of the People Act being in the nature of a counter-claim, notices are therefore required to be issued.

Mr. Sudeep Seth, learned Senior counsel has refuted submissions advanced by learned counsel for recriminator as well as learned counsel for respondent no.4 and submits that Section 97 of the Representation of People Act applies only in case a composite claim is made in an election petition. He has referred to the aforesaid provision to submit that in terms of the aforesaid Section 97, recrimination can be claimed where in an election petition a declaration apart from challenge to the returned candidate is sought that in case that any other candidate in whose favour a declaration has been sought or claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void had he been a returned candidate. It is submitted that although the recrimination petition filed in terms of Section 97 of the Representation of People Act is in the nature of a counter claim but would depend on the final out come of the election petition itself and therefore the recrimination petition would only be consequential in nature, due to which, no notices are required to be issued in the recrimination petition particularly at this stage when the election petition is still pending.

It is further submitted that Section 97 of the Representation of the People Act does not contemplate any issuance of notice either to the returned candidate or any other party to the lis and in fact indicates only the aspect of notice to be given to the High Court for intention to file a recrimination petition within 14 days from the date of commencement of trial. Learned counsel has also adverted to provisions of Chapter XV-A Rules 5 and 12 of the Allahabad High Court Rules read with Section 87 of the Representation of Peoples Act to submit that the provisions clearly indicate that the procedure required to be adopted by High Court for adjudication in election petitions are required to be as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure. It is therefore submitted that applicability of the Code of Civil Procedure is only for convenience in following procedure pertaining to the conduct of an election petition and provisions of the Code are not strictly applicable either for decision in an election petition or even a recrimination petition. He has placed reliance on judgments rendered by Hon'ble the Supreme Court in the case of Jabar Singh versus Genda Lal reported in AIR 1964 Supreme Court 1200, Janardan Dattuappa Bondre versus Govind Prasad Shiv Prasad Choudhar;(1979)4 SCC 516, N. Gopal Reddy versus Bonala Krishnamurthy & Ors. (1987) 2 SCC 58, B. Sundara Rami Reddy versus Election Commission of India & Ors. 1991 Supplementary (2) SCC 624.

Learned counsel has also adverted to Application I.A. No.2 of 2024 in the recrimination petition and has particularly placed reliance on paragraphs 4, 5, 6 & 8 to submit that recriminator himself has admitted that in a recrimination petition filed under Section 97 of the Representation of People Act, no notice is required to be issued.

Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it would be conducive to refer to the relevant provisions:

"86. Trial of election petitions.

..............(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.

Procedure before the High Court.-(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]

Recrimination when seal claimed.-(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election:

Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively.

(2) Every notice referred to in sub¬section (1) shall be accompanied by the statement and 24[***] particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner."

CHAPTER XV-A SPECIAL PROVISIONS RELATING TO THE TRIAL OF ELECTION PETITIONS Rules 5 & 12 of the Allahabad High Court Rules as under:

Issue of notice to respondent. The election petition shall be laid before the Bench so constituted without delay, and unless it is dismissed under sub-section

(1) of Section 86 of the Act or for being otherwise defective, the Bench may direct issue of notice to the respondent to appear and answer the claim on a date to be specified therein. Such notice shall also direct that if he wishes to put up a defence he shall file his written statement together with a list of all documents, whether in his possession or power or not, upon which he intends to rely as evidence in support of his defence on or before the date fixed; and further, that in default of appearnace being entered on or before the date fixed in the notice the election petition may be heard and determined in his absence. The notice shall be in Form No.34-A.

Court's power to give directions in matters of practice and procedure. The Bench may, consistently with the provisions of Section 87 of the Act, give such directions in matters of practice and procedure (including the recording of evidence) as it shall consider just and expedient.

ORDER VII Plaint of the Code of Civil Procedure, 1908 ..................9. Procedure on admitting plaint.-Where the Court orders that the summons be served on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants.

ORDER V Issue and Service of Summons Issue of Summons of the Code of Civil Procedure, 1908: .....................Rule 9. Delivery of summons by Court.-(1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.

(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct.

(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.

(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply.

(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).

ORDER VIII 1 [Written statement, set-off and counter-claim] of the Code of Civil Procedure, 1908

[6A(4). Counter-claim by defendant.-

............ (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

A perusal of Section 97 of the Act of 1951 indicates a provision for filing of a recrimination petition and also indicates the twin aspect with regard to relief claimed whereunder only, a recrimination petition would be entertain-able particularly when in an election petition a declaration that any other candidate other than the returned candidate has been duly elected is claimed, provision has been made for returned candidate or any other party to provide evidence to prove that election of such candidate would have been void if he had been a returned candidate.

Chapter III of the Act of 1951 pertains to trial of election petitions with Section 87 adverting to the procedure required to be followed by the High Court for trial of election petitions. Sub-section 1 thereof clearly indicates that every election petition shall be tried by the High Court, as nearly as may be, in accordance with procedure applicable under the Code of Civil Procedure.

It is thus evident that for purposes of trial of election petition before this Court, procedure required to be followed is to be by and large in accordance with the Code of Civil Procedure. The said aspect has also been indicated in Chapter XV-A, Rule 5 which pertains to issuance of notice to respondent and also indicates that unless an election petition is dismissed in terms of Section 86(1) of the Act of 1951 or for being otherwise defective, notices are required to be issued to respondents to appear and answer the claim. Rule 12 indicates the power of Court to give directions in matters of practice and procedure which are consistent with the provisions of Section 87 of the Act of 1951.

Learned counsel for recriminator has placed special emphasis on provisions of Order VIII, Rule 6A(4) which indicates the procedure required to be followed in cases of a counter claim by a defendant.

The said provision provides a right to a defendant in a suit to setup by way of counter claim against the plaintiff, any right or claim in respect of a cause of action in terms of stipulations provided therein. Sub Rule 4 of Order VIII Rule 6A provides that the counter claim shall be treated as a plaint and governed by the Rules applicable to plaints.

Order VII Rule 9 of the Code pertains to procedure on admitting a plaint and refers to Order V Rule 9 with regard to procedure for serving of summons upon defendants.

Hon'ble the Supreme Court in the cases of Jabar Singh and Bhag Mal (supra) has clearly enunciated the aspect that a recrimination petition filed in terms of Section 97 of the Act of 1951 is in the nature of a counter claim.

In the case of Jabar Singh (supra), it has been held that the result of Section 97(1) of the Act is that in dealing with a composite election petition, the tribunal inquires into not only the case made out by petitioner but also the counter claim made by returned candidates. It is therefore the nature of proceedings contemplated under Section 97(1) that it is a counter claim. It has also been held that until and unless the returned candidate does not recriminate as provided under Section 97, he cannot make any attack against the alternative claim made in petition and in such a case an inquiry is required to held under Section 100 of the Act of 1951 and it is only when as a result of the said inquiry, declaration is made that the election of returned candidate is void, then the tribunal will proceed to deal with the alternative claim.

The relevant portion of judgment is as follows:

"11. There are, however, cases in which the election petition makes a double claim; it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that Section 100 as well as Section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that Section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of Section 97(1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97(1) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate."

The same aspect has been enunciated in the case of Janardan Dattuappa Bondre (supra) placing reliance on the case of Jabar Singh (supra) and it has been held that proceedings under Section 97 of the Act of 1951 are consequential upon the outcome of the Election Petition.

It is thus established from the aforesaid pronouncements that the proceedings under Section 97 of the Act of 1951 are in the nature of a counter claim but are consequential to the final outcome of the election petition itself.

So far as the aspect of issuance of notice to respondents in a recrimination petition is concerned, the Supreme Court in the case of Janardan Dattuappa Bondre (supra) has held as follows:

"9. The inclusion of the 250 votes cast in favour of the appellant was material for the purpose of determining the total number of votes received by him. The accident that they were not placed in his packet but in Bahekar's packet did not render them any the less votes belonging to the appellant. Their inclusion in calculating the appellant's total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition his election should be declared void. It was a process relevant to the first of the reliefs claimed by the election petitioner, that is to say, that the election of the appellant be declared void. The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected. Now, as we observed in Jabar Singh v. Genda Lal; (1964) 6 SCR 54, where both reliefs are claimed in an election petition the Court must first decide the question whether the election of the returned candidate is valid or not, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected.

A notice of recrimination under Section 97 of the Act is necessary only where the returned candidate or other candidate disputes the grant of the further declaration sought by the election petitioner that he or some other candidate should be declared duly elected. When the re-count was taken, the High Court had not yet concluded that the election of the appellant was invalid. It was in the process of determining that question, and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him. These would include the 250 votes cast in his favour, even though they were found placed in Bahekar's packet. Once the benefit of his 250 votes is given to the appellant, he becomes the candidate with the highest number of votes. His election cannot be declared void. That being so, no question arises of the appellant wanting to give evidence to prove that the election of any other candidate would have been void if he had been the returned candidate. Therefore, no notice for recrimination under Section 97 was necessary. In the circumstances, the High Court erred in declining to count the appellant's 250 votes in his total on the ground that no notice of recrimination under Section 97 of the Act had been given."

The same aspect has been propounded by Hon'ble the Supreme Court in the case of N. Gopal Reddy (supra) in the following manner:-

"12. A plain reading of the aforesaid section indicates that a notice of recrimination is to be given to the High Court by the returned candidate within a stipulated time if he desires to adduce evidence to prove that the election of the candidate in whose favour a declaration may have been asked would be void. The proviso to Section 97(1) further indicates that the returned candidate is not entitled to give such evidence unless he gives notice within 14 days from the date of the commencement of the trial to the High Court. It is relevant to note that Section 97 does not require notice of recrimination to be given to the election petitioner; instead it is to be given to the High Court. Absence of recriminatory notice does not prejudicially affect the candidate in whose favour relief of declaration may have been claimed. Moreover when the returned candidate points out the validity or invalidity of ballot papers already on record, he is not tendering any evidence before the court as contemplated by Section 97 of the Act; instead he is referring to the material which is already on record. If the High Court takes cognizance of such a material on record without a notice under Section 97 we do not think that the High Court would commit a jurisdictional error."

In the case of B. Sundara Rami Reddy (supra), the aspect of applicability of Code of Civil Procedure in election petition has been indicated that such provisions and procedure are not strictly applicable but have been made applicable to a limited extent only as indicated under Section 87 of the Act of 1951.

With regard to judgments cited by learned counsel for petitioner, it is relevant that all the judgments pertain to the aspect of recount of votes and it is in that context that Hon'ble the Supreme Court has held that since all the material evidence was already on record, there was no occasion for production of fresh evidence due to which fresh notices were not required to be issued for furnishing of fresh evidence.

However the aspect which requires adjudication is not confined only to the aspect of recount of votes but also the aspect of improper acceptance of the nomination form or any other aspect which would vitiate the election itself and would thus require submission of fresh evidence including in a recrimination petition filed under Section 97 of the Act.

It is in such premise that in the considered opinion of this Court, judgments relied upon by learned counsel for petitioner would be inapplicable where the election is challenged not only on the aspect of recount of votes but also on the aspect of improper acceptance of nomination form or any other aspect which materially affects the outcome of the election.

Learned counsel for election petitioner has also adverted to Section 86(4) of the Act to submit the said provision provides for any candidate not already a respondent, to be impleaded as one upon application made by him to the High Court within the time stipulated. It is also submitted that in explanation of Section 86(4) of the Act, although Section 97 has been indicated but it is only for the purpose of ascertaining the date of commencement of trial of a petition and not for any other purpose and therefore on a perusal of the entire Section 86 of the Act, there is no provision for issuance of notice under Section 97.

With regard to such submission, it is quite evident from a perusal of Section 86(4) of the Act that it would be applicable where the election petition has been filed seeking challenge to the election of returned candidate and not where a composite election petition has been filed as indicated here-in-above. Even otherwise the explanation to Section 86(4) of the Act indicates that Section 97 has been referred to not only for the purposes of ascertainment of the date of commencement for trial but also for the date which is fixed for respondents to appear before the High Court and answer the claim or claims made in the petition.

For compliance of the explanation clause of Section 86(4) of the Act, therefore it is evident that for the respondents to appear before the High Court and answer the claim made in the petition, obviously a notice is required to be issued and since the explanation to Section 86(4) of the Act refers to Section 97 as well, it would naturally follow that notice would be required to be issued in a recrimination petition under Section 97 as well fixing for appearance of the respondents without which no date can be fixed for respondents to appear.

It is also relevant to refer to provisions of Section 87 of the Act which clearly prescribes that every election petition shall be tried, as nearly as may be, in accordance with procedure applicable under the Code of Civil Procedure.

Although Section 97 of the Act does not indicate any provision for issuance of notice to any of the respondents but the said aspects as to the nature of a recrimination petition under Section 97 of the Act has clearly been defined and enunciated upon by Hon'ble the Supreme Court as observed here-in-above and is in the nature of a counter claim. It is in such circumstances that applicability of the Code of Civil Procedure is required to be examined.

Once it is already determined that the nature of recrimination petition under Section 97 of the Act is that of a counter claim and since Code of Civil Procedure is applicable to the trial of election petitions, it would necessarily follow that provisions of Order VIII Rule 6A pertaining to counter claim filed by defendant would apply. Since the aforesaid Rule also prescribes issuance of notice on a counter-claim and there is no prohibition on the applicability of the Code of Civil Procedure with regard to Section 97 of the Act, in the considered opinion of this Court, the said provision of Order VIII Rule 6A(4) shall be applicable and a counter claim shall be treated as a plaint and would be governed by Rules applicable to the plaints whereby obviously notice would require to be issued in a recrimination petition under Section 97 of the Act.

In view of discussion made here-in-above, it is thus held that in recrimination petition filed under Section 97 of the Act, separate notices are required to be issued to the respondents of recrimination petition.

However at this stage, issuance of notice in the recrimination petition is also required to be examined and in that context, as delineated here-in-above,it has been held by Hon'ble the Supreme Court that a recrimination petition is required to be examined by the High Court subsequent to the outcome of the election petition itself since the recrimination under Section 97 of the Act is consequential. In such circumstances, Section 98 of the Act also requires examination and is in the following nature:

"98. Decision of the High Court.-

At the conclusion of the trial of an election petition the High Court shall make an order-

(a) dismissing the election petition; or

(b) declaring the election of all or any of the returned candidates to be void; or

(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected."

The aforesaid Section, particularly sub-section(c) thereof clearly indicates that decision of the High Court at the conclusion of trial of election petition includes a decision on the recrimination petition under Section 97 itself in case the outcome of the election petition itself warrants a further adjudication of the recrimination petition.

In view thereof, since recrimination petition is in the nature of a consequential petition, subject to outcome of the election petition itself, the notices on such recrimination petition are required to be issued only in case recrimination petition is required to be adjudicated subject to final outcome of the election petition itself.

In view of observation made here-in-above, application for notices to be issued to the respondents in the recrimination petition is directed to be kept in abeyance and shall be subject to final decision of the election petition itself, particularly in case any adjudication on the recrimination petition is warranted.

As prayed, list this case on 07.07.2026 at 03.30 P.M. for arguments on applications I.A No.22 of 2024 and I.A No.56 of 2025.